Levingston v. California Department of Corrections & Rehabilitation

FILED NOT FOR PUBLICATION JUL 12 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT TONI D. LEVINGSTON, No. 11-15566 Plaintiff - Appellant, D.C. No. 1:09-cv-00589-AWI- SKO v. CALIFORNIA DEPARTMENT OF MEMORANDUM * CORRECTIONS AND REHABILITATION; et al., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief Judge, Presiding Submitted June 26, 2012 ** Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges. Toni D. Levingston, a former California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm. The district court properly dismissed Levingston’s action because Levingston did not properly exhaust administrative remedies before filing his complaint, and failed to show that administrative remedies were effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (explaining that “proper exhaustion” requires adherence to administrative procedural rules); Sapp v. Kimbrell, 623 F.3d 813, 826 (9th Cir. 2010) (administrative remedies are “available” where administrative appeals are screened for proper reasons). We construe the dismissal of these claims to be without prejudice. See Wyatt, 315 F.3d at 1120. The district court did not abuse its discretion in denying Levingston’s motions for reconsideration because Levingston provided no basis for reconsideration. See Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and requirements for reconsideration). Levingston’s remaining contentions are unpersuasive. AFFIRMED. 2 11-15566